Law Commons^™

The Loving Story: Using A Documentary To Reconsider The Status Of An Iconic Interracial Married Couple, Regina Austin

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The Loving Story (Augusta Films 2011), directed by Nancy Buirski, tells the backstory of the groundbreaking U.S. Supreme Court case, Loving v. Virginia, that overturned state laws barring interracial marriage. The article looks to the documentary to explain why the Lovings should be considered icons of racial and ethnic civil rights, however much they might be associated with marriage equality today. The film shows the Lovings to be ordinary people who took their nearly decade long struggle against white supremacy to the nation’s highest court out of a genuine commitment to each other and a determination to live in …

When Law Is Complicit In Gender Bias: Ending De Jure Discrimination Against Women As An Important Target Of Sustainable Development Goal 5, Rangita De Silva De Alwis

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Ending all forms of discrimination against women and girls is not only a basic human right, but also crucial to accelerating sustainable development. The very first target of Goal 5. 1.1 calls to end all forms of discrimination against all women and girls everywhere and the indicator for the goal is: “Whether or not legal frameworks are in place to promote, enforce and monitor equality and non-discrimination on the basis of sex”. In many countries around the world the legal frameworks themselves allow for both direct (de jure) and indirect (de facto) discrimination against women. This essay identifies some areas …

Intersectionality And The Constitution Of Family Status, Serena Mayeri

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Marital supremacy—the legal privileging of marriage—is, and always has been, deeply intertwined with inequalities of race, class, gender, and region. Many if not most of the plaintiffs who challenged legal discrimination based on family status in the 1960s and 1970s were impoverished women, men, and children of color who made constitutional equality claims. Yet the constitutional law of the family is largely silent about the status-based impact of laws that prefer marriage and disadvantage non-marital families. While some lower courts engaged with race-, sex-, and wealth-based discrimination arguments in family status cases, the Supreme Court largely avoided recognizing, much less …

Why Baby Markets Aren’T Free, Dorothy E. Roberts

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Creating families in the twenty-first century increasingly happens in markets where the buying and selling of reproductive goods and services are facilitated by advanced technologies, the internet, contracts, and state laws and policies. Thus, the title of this international congress—“Baby Markets”—aptly captures a key aspect of modern reproduction. The ability of potential parents to engage in market transactions involving children enhances parents’ autonomy over their family lives. The free market seems to liberate us from the constraints of biology and state control.

This Essay argues, however, that baby markets aren’t free. Three aspects of the way reproductive goods and services …

Foundling Fathers: (Non-)Marriage And Parental Rights In The Age Of Equality, Serena Mayeri

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The twentieth-century equality revolution established the principle of sex neutrality in the law of marriage and divorce and eased the most severe legal disabilities traditionally imposed upon nonmarital children. Formal equality under the law eluded nonmarital parents, however. Although unwed fathers won unprecedented legal rights and recognition in a series of Supreme Court cases decided in the 1970s and 1980s, they failed to achieve constitutional parity with mothers or with married and divorced fathers. This Article excavates nonmarital fathers’ quest for equal rights, until now a mere footnote in the history of constitutional equality law.

Unmarried fathers lacked a social …

The Reverberating Risk Of Long-Term Care, Allison K. Hoffman

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The Fiftieth Anniversary of Medicare and Medicaid offers an opportunity to reflect on how American social policy has conceived of the problem of long-term care. In this essay, based on a longer forthcoming article, I argue that current policies adopt too narrow a conception of long-term care risk, by focusing on the effect of serious illness and disability on people who need care and not on the friends and family who often provide it. I propose a more complete view of long-term care risk that acknowledges how illness and disability reverberates through communities, posing insecurity for people beyond those in …

Marital Supremacy And The Constitution Of The Nonmarital Family, Serena Mayeri

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Despite a transformative half century of social change, marital status still matters. The marriage equality movement has drawn attention to the many benefits conferred in law by marriage at a time when the “marriage gap” between affluent and poor Americans widens and rates of nonmarital childbearing soar. This Essay explores the contested history of marital supremacy—the legal privileging of marriage—through the lens of the “illegitimacy” cases of the 1960s and 1970s. Often remembered as a triumph for nonmarital families, these decisions defined the constitutional harm of illegitimacy classifications as the unjust punishment of innocent children for the “sins” of their …

Reconciling Equal Protection Law In The Public And In The Family: The Role Of Racial Politics, Dorothy E. Roberts

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In Constitutional Colorblindness and the Family, Katie Eyer brings to our attention an intriguing contradiction in the Supreme Court's equal protection jurisprudence. Far from ending race‐based family law rules with its 1967 decision, Loving v. Virginia, the Court has ignored lower courts' decisions approving official uses of race in foster care, adoption, and custody decisions in the last half century. Thus, as Eyer observes, “during the same time that the Supreme Court has increasingly proclaimed the need to strictly scrutinize all government uses of race, family law has remained a bastion of racial permissiveness.”

Scholars who oppose race‐matching …

Diverging Destinies Redux, Amy L. Wax

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My recent “where to live” conversation with a newly hired colleague yielded an unsurprising list of “possibles”: selected blocks of Mount Airy and Germantown, plus the Main Line towns of Bryn Mawr, Ardmore, Haverford, Villanova, Gladwyne, and so forth. Despite my colleague’s professed open mind about potential neighborhoods, Jenkintown — my own somewhat obscure and distinctly unfashionable (but much more affordable) suburb — drew a blank stare, as did a dozen other solidly middleclass areas I mentioned. By my calculation, there are over 400 zip codes within a thirty-mile radius of Rittenhouse Square, which is in the center of downtown …

Historicizing The "End Of Men": The Politics Of Reaction(S), Serena Mayeri

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No abstract provided.

Examining Gender Stereotypes In New Work/Family Reconciliation Policies: The Creation Of A New Paradigm For Egalitarian Legislation, Rangita De Silva De Alwis

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No abstract provided.

Are We Responsible For Who We Are? The Challenge For Criminal Law Theory In The Defenses Of Coercive Indoctrination And "Rotten Social Background", Paul H. Robinson

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Should coercive indoctrination or "rotten social background" be a defense to crime? Traditional desert-based excuse theory roundly rejects these defenses because the offender lacks cognitive or control dysfunction at the time of the offense. The standard coercive crime-control strategies of optimizing general deterrence or incapacitation of the dangerous similarly reject such defenses. Recognition of such defenses would tend to undermine, perhaps quite seriously, deterrence and incapacitation goals. Finally, the normative crime-control principle of empirical desert might support such an excuse, but only if the community's shared intuitions of justice support it. The law’s rejection of such defenses suggests that there …

Immigration, Association, And The Family, Matthew J. Lister

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In this paper I provide a philosophical analysis of family-based immigration. This type of immigration is of great importance, yet has received relatively little attention from philosophers and others doing normative work on immigration. As family-based immigration poses significant challenges for those seeking a comprehensive normative account of the limits of discretion that states should have in setting their own immigration policies, it is a topic that must be dealt with if we are to have a comprehensive account. In what follows I use the idea of freedom of association to show what is distinctive about family-based immigration and why …

Diverging Family Structure And “Rational” Behavior: The Decline In Marriage As A Disorder Of Choice, Amy L. Wax

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The past fifty years have witnessed a growing divergence in family structure by social class, income, education, and race. The goal is to explain why significant segments of the population are moving away from the traditional patterns of family and reproduction. Most demographers acknowledge that external and material constraints fail to account for most of the present dispersion by class and race in marriage, divorce, and patterns of childbearing. Nor do these factors explain the widening of disparities over time. In attempting to improve on prior theories, this paper proposes a different explanation for these developments. It argues that demographic …

Norm Change Or Judicial Decree? The Courts, The Public, And Welfare Reform, Amy L. Wax

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No abstract provided.

The Family Law Doctrine Of Equivalence, Amy L. Wax

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No abstract provided.

Race, Gender, And Genetic Technologies: A New Reproductive Dystopia?, Dorothy E. Roberts

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No abstract provided.

Engines Of Inequality: Class, Race, And Family Structure, Amy L. Wax

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The past 30 years have witnessed a dramatic divergence in family structure by social class, income, education, and race. This article reviews the data on these trends, explores their significance, and assesses social scientists’ recent attempts to explain them. The article concludes that society-wide changes in economic conditions or social expectations cannot account for these patterns. Rather, for reasons that are poorly understood, cultural disparities have emerged by class and race in attitudes and behaviors surrounding family, sexuality, and reproduction. These disparities will likely fuel social and economic inequality and contribute to disparities in children’s life prospects for decades to …

Negotiating Divorce: Gender And The Behavioral Economics Of Divorce Bargaining, Tess Wilkinson-Ryan, Deborah Small

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No abstract provided.

Well-Being, Inequality And Time: The Time-Slice Problem And Its Policy Implications, Matthew D. Adler

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Should equality be viewed from a lifetime or “sublifetime” perspective? In measuring the inequality of income, for example, should we measure the inequality of lifetime income or of annual income? In characterizing a tax as “progressive” or “regressive,” should we look to whether the annual tax burden increases with annual income, or instead to whether the lifetime tax burden increases with lifetime income? Should the overriding aim of anti-poverty programs be to reduce chronic poverty: being badly off for many years, because of low human capital or other long-run factors? Or is the moral claim of the impoverished person a …

Child Welfare's Paradox, Dorothy E. Roberts

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No abstract provided.

Traditionalism, Pluralism, And Same-Sex Marriage, Amy L. Wax

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No abstract provided.

Mandatory Waiting Periods For Abortions And Female Mental Health, Jonathan Klick

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Proponents of laws requiring a waiting period before a woman can receive an abortion argue that these cooling off periods protect against rash decisions on the part of women in the event of unplanned pregnancies. Opponents claim, at best, waiting periods have no effect on decision-making and, at worst, they subject women to additional mental anguish and stress. In this article, I examine these competing claims using adult female suicide rates at the state level as a proxy for mental health. Panel data analyses suggest that the adoption of mandatory waiting periods reduce suicide rates by about 10 percent, and …

The Need For A Reduced Workweek In The United States, Vicki Schultz, Allison K. Hoffman

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This paper argues that a reduced workweek offers a way to alleviate work-family conflict without exacerbating the sex-based division of labor in paid work and unpaid family work. We distinguish our position from two other approaches: (1) one that compensates unpaid family work directly (through such policies as traditional welfare provision, or alimony), policies we argue can discourage women from labor force attachment and contribute to sex-stereotyping and sex-segregated employment; and (2) an approach that spurs employers to accommodate workers' family responsibilities (through such policies as part-time work for parents), policies workers often avoid out of a well founded fear …

The Conservative's Dilemma: Traditional Institutions, Social Change, And Same-Sex Marriage, Amy L. Wax

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No abstract provided.

The Community Dimension Of State Child Protection, Dorothy E. Roberts

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No abstract provided.

Black Club Women And Child Welfare: Lessons For Modern Reform, Dorothy E. Roberts

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No abstract provided.

Econometric Analyses Of U.S. Abortion Policy: A Critical Review, Jonathan Klick

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No abstract provided.

Bankruptcy's Home Economics, David A. Skeel Jr.

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This essay began its life as a commentary on Elizabeth Warren’s article “The New Economics of the American Family” at the American Bankruptcy Institute's 25th Anniversary Symposium of the Bankruptcy Code in 2003. (Both the Warren article and my commentary were published in the symposium in the American Bankruptcy Institute Law Review.) “The New Economics of the American Family” was drawn in many respects from then-Professor Warren’s co-authored book, The Two Income Trap. The essay refers to both, though it puts particular emphasis on the article. The essay begins by briefly describing the basic thesis of the article-- …

Welfare Reform And Economic Freedom: Low-Income Mothers' Decisions About Work At Home And In The Market, Dorothy E. Roberts

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No abstract provided.